In What Format Should I Make My Production? And, Does Format Matter?

May 30, 2019

The issue of production format when dealing with ESI is often the subject of discussion and disagreement.  If possible, the parties to the litigation should agree at the outset to the production format.   In fact, a conversation about production format, metadata and redactions (among other things) should occur at the preliminary conference and/or the Rule 26 conference. However, this “meet and confer” process often gets short-changed or skipped entirely, leaving the producing parties to respond to unexpected and often costly production demands.  Irrespective of whether the parties agree upon a production format, it is important to understand the more common formats and their respective benefits/shortcomings.

1. Native File Production

A native production consists of electronically stored information in the format in which it is maintained ordinarily by the producing party.  The benefits of native file production include savings of money and time compared to other formats, which require conversion of the ESI into images and associated load files.  However, some files cannot be produced in native file format because they require conversion in order to allow them to be reviewable (i.e., certain email formats and databases).  Additional drawbacks of a native production include the inability to brand individual pages (i.e., with a bates stamp or confidential legend) or to apply redactions.  Perhaps the most concerning aspect of a native production, however, is the producing party’s inability to control the metadata produced because the document is “live.”  Consider for example an Excel document.  The metadata produced with it would necessarily include any hidden text, track changes, and comments.  An additional concern with native files is the challenges attendant to applying redactions.

3. TIFF Production

TIFF is an acronym for tagged image format file. It is a common graphic file format and the extension related to this format is .tif.  In a TIFF production, all documents are converted from their native format to black and white, single-page .tif files.  It is as if a “picture” of the ESI is taken such that is appears to the end user in the same way one would view it on screen or if printed.  For each record, document level text, an image (.opt) load file, and a metadata (.dat) load file is provided.  By producing the image with the accompanying extracted text and metadata in load files the image is viewable and searchable in a review tool.** Although converting native files to .tif involves a cost, the advantages of an image production include the ability to number, redact and mark documents as confidential, as well as the ability to control the metadata fields that are produced. Imaged files also carry less risk of accidental alteration because they are not capable of being edited.  However, the costs attributable to, and the time involved in, converting the ESI to images may be viewed as a negative.

3. Text/Searchable PDF Production

A searchable PDF is effectively the same as a .tif production.  However, rather than simply exporting the converted images to a review tool, the images are converted to PDFs and then OCR’d* to incorporate searchability.  Often one requests PDFs if they plan on reviewing the production outside of a review tool.  However, even an OCR’d PDF can suffer from incomplete and imprecise search functionality.  And so, PDF productions are less desirable than a .tif.

4. Paper Production

Paper documents are physical documents copied from other physical documents or printed from ESI.  Paper production is often the least expensive and shares many of the same advantages of .tif and .pdf productions.  For example, papers can be easily bates stamped, redacted and branded.  However, a paper production can be laborious and inefficient when you are on the receiving end.  For example, paper cannot be searched or indexed electronically. Rather, one is left to sort through, and manually organize, bankers’ boxes of documents.  And because paper has no metadata associated with it, reducing ESI to a paper format with no searchable text or metadata may not meet the requirement of producing ESI in a reasonably usable form as many of the discovery rules require.

It should also be noted that document productions often include a combination of the above formats.  For example, the lion’s share of a production may be .tif files, however, any Excel file in the production may be produced in native so that is it is more usable.  Similarly, databases may be produced in a native file format with any item needing redaction converted to an image.  Given the variables and the associated benefits and drawbacks, one should engage in a meaningful conversation with their adversary at the preliminary conference /Rule 26(f) conference to devise a production plan and chart a course that lays out what is being requested and the production expectations.

*OCR stands for Optical Character Recognition.  It is the process of converting images of printed pages into electronic text.  It is typically done so that a file is text-searchable.

**Reference to a “review tool” is meant to describe the database/repository where ESI documents are located for purposes of review and production.  These “tools” are necessary because it is impractical and inefficient to open on one’s computer each file in their many different source applications . It is therefore necessary to load the ESI into an application that allows it to be reviewed, searched and analyzed. Some companies that are frequently involved in litigation choose to purchase such applications for their own use, but many use applications hosted on their law firm’s or an e-discovery vendor’s systems. Review tools usually require the ESI to be processed before loading.

Have questions?  Please contact me at kcole@farrellfritz.com.